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Americas Abandonment of the Founding: The Absence of Natural Law

Res Publica

July 1998

by Anna Beth Rankin

This essay is taken from an extensive research paper on Natural Law, which the author is currently writing.

The Declaration of Independence forthrightly states "We hold these truths to be self evident: that all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." The origin of these Rights is "…the Laws of Nature and of Natures God…" (Declaration of Independence). The Founders used the principle of Natural Law as the basis for the Declaration of Independence as well as the Constitution. This makes the concept of Natural Rights extraordinarily important when examining the foundations of our government. However, despite this, the Natural Law argument seems to have become lost in current politics and judicial debates.

Why is this? I believe it arises due to two main problems. First, the American people have lost faith in a "Creator" who serves as the basis for these rights. Secondly, in reaction to the former, scholars, as well as, judges have begun to focus on conventional rights, such as those in the Constitution, instead of Natural Rights. In this article, I will examine where the concept of Natural Law originated, what it means, and demonstrate its absence from current politics.

John Locke, a man the Founders looked to for the philosophical foundations of this nation, used the term "Natural Law" in his Second Treatise on Government. He wrote,

The State of Nature has a Law of Nature to govern it which obliges everyone:… that being all equal and independent no one ought to harm another in his Life, Health, Liberty, or Possessions (Locke, 270-71).

His idea was rooted in the belief that Nature created man and, therefore, prescribed Laws by which man had to live in order to preserve himself.

The Declaration of Independence is based on Natural Law, while the Constitution is a conventional law, a man-made law. To understand the difference, conventional laws are created by man and can therefore be destroyed. Natural Law derives itself from nature, a force beyond mans control; therefore, it is unalterable. I believe that misunderstandings about these two types of law, and the connection between the Declaration of Independence and the Constitution, are one reason for the loss of the Natural Law argument.

The Constitution is the Supreme Law of the United States; however, it has its philosophical roots in the Declaration of Independence. The Constitution is the Supreme Law, one designed to enforce the principles in the Declaration of Independence. I assert that the Founders intended the Constitution to be the means by which to execute the principles in the Declaration of Independence. President Abraham Lincoln wrote, in his article Fragment on the Constitution and the Union, that the Declaration of Independence was an apple of gold whereas the Constitution was the "picture of silver" framed around it. The frame would be worthless without the center picture, and the center could not be upheld without the frame.

Confusion about rights has also arisen due to the addition of the Bill of Rights to the Constitution. Many of the Founders were opposed to the Bill of Rights because they believed the Constitution and the Declaration of Independence already established our rights. The Bill of Rights places the emphasis on rights as rooted in conventional law and not Natural Law. One clear example of the power of civil rights is the Supreme Courts rulings that these rights can be abridged under certain circumstances. In Gitlow v. New York (1925) and many other similar cases, the Court ruled that speech can be limited if it poses as "substantive evil." In these circumstances, the Court ruled that no freedom of speech even exists. The fact that these rights can be revoked demonstrates that they are not as powerful as Natural Rights.

Now I will sight examples of how the Natural Law argument has disappeared from current debates. One important Court case which demonstrates the Supreme Courts reluctance to assert Natural law arguments is Bowers v. Hardwick (1986). This case involved the constitutionality of a Georgia law which banned sodomy. The Court decided in a five to four decision that laws which banned sodomy therefore constitutional. In making its decision, the Court referred to past laws against sodomy–such as common law and many state laws. In his opinion, Justice White stated,

Against this background, to claim a right to engage in such conduct is deeply rooted in this Nationss history and tradition… is, at best, facetious.

However, the Court never said that sodomy violated Natural Law and was therefore unconstitutional. They completely refrained from examining the argument.

One main supporter of Natural rights was President Lincoln, who used it as the foundation of his arguments against slavery. Slavery clouded the understanding of Natural Rights because it caused people to question what the Founders intended by "We." The Constitution should have forbade slavery because it was contradictory to Natural Law. President Lincoln believed that the Founders fully understood the rights which all men, including Negroes, were entitled. He stated, during his speech at Springfield, Illinois on June 26, 1857, that "…the Founders meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit." The former statement, which I assert is true, completely contradicts the Supreme Courts decision in Dred Scot v. Sanford (1857) in which the Court ruled that the black man is not entitled to rights because he was not included in the Declaration of Independence. This is clearly judicial m
isinterpretation of the principles of Natural Law as well as the philosophic foundations of the United States.

Currently, there is one fierce supporter of Natural Law who stands out, Supreme Court Justice Clarence Thomas. He has been ridiculed and condemned for his strict adherence to the principles of Natural Law. He has said that he subscribes to this principle because it guarantees equality, even if the words of the Constitution do not. He uses this argument in attacking the issue of slavery and several Supreme Court decisions. In Brown v. Board of Education, which overturned Plessy v. Ferguson, Justice Thomas was astounded that the Court ruled on the basis of the social environment (the feeling of "inferiority") instead of asserting that segregation violated Liberty.

Another change is beginning to take place, possibly due to Justice Thomas: Scholars are again referring to Natural Law even if they are only questioning its whereabouts. Justice Chase in the Calder case writes that an act of legislation which is contrary to the first great principles of social compact (those in the Declaration of Independence) cannot be considered a rightful exercise of legislative authority and must therefore be overturned. Justice Thomas eloquently sums up the need for the reemergence of the Natural Law argument in his article "Toward a Plain Reading of the Constitution" when he writes "The first purposes of equality and liberty should inspire our political and constitutional thinking."

Anna Beth Rankin is a senior from Concord, Ohio majoring in Political Science. She interned this summer for the Heritage Foundation in Washington, D.C.